Aaron Raiser v. City of Los Angeles

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 4 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT

AARON RAISER, No. 15-55487

Plaintiff-Appellant, D.C. No. 2:14-cv-04809-RGK-RZ

v.
MEMORANDUM*
CITY OF LOS ANGELES; BOB
STRESAK, Director, California
Commission on Peace Officer Standards and
Training, official capacity,

Defendants-Appellees.

Appeal from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding

Submitted September 21, 2017**

Before: SCHROEDER, HAWKINS, and N.R. SMITH, Circuit Judges.

Aaron Raiser appeals pro se from the district court’s judgment dismissing

his 42 U.S.C. § 1983 action alleging constitutional violations arising out of various

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes these cases are suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2). Raiser’s requests for oral
argument, set forth in his opening and reply briefs, are denied.
stops performed by Los Angeles Police Department officers. We have jurisdiction

under 28 U.S.C. § 1291. We review de novo the district court’s dismissal for

failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Stone v.

Travelers Corp., 58 F.3d 434, 436-37 (9th Cir. 1995). We may affirm on any basis

supported by the record, Thompson v. Paul, 547 F.3d 1055, 1058-59 (9th Cir.

2008), and we affirm.

The district court properly dismissed Raiser’s claims against defendant

Stresak in his official capacity because Stresak was entitled to Eleventh

Amendment immunity. See Krainski v. Nev. ex rel. Bd. of Regents of Nev. Sys. of

Higher Educ., 616 F.3d 963, 967 (9th Cir. 2010) (Eleventh Amendment bars suits

against state officials sued in their official capacities absent unequivocal consent

by the State).

The district court properly dismissed as moot Raiser’s claims for declaratory

and injunctive relief with respect to Los Angeles Municipal Code § 85.02 because

§ 85.02 was struck down as unconstitutionally vague. See Desertrain v. City of

Los Angeles, 754 F.3d 1147, 1155-57 (9th Cir. 2014); see also Am. Cas. Co. of

Reading v. Baker, 22 F.3d 880, 896 (9th Cir. 1994) (a case is moot when there is

no longer a present controversy to which relief can be granted).

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 The district court properly dismissed Raiser’s Claim 2 for injunctive relief

against defendant City of Los Angeles (“City”) because Raiser’s allegation that he

was likely to be subjected to future constitutional violations was too speculative.

See City of Los Angeles v. Lyons, 461 U.S. 95, 105-06 (1983) (“[T]o establish an

actual controversy,” the plaintiff was required to “allege that he would have

another encounter with the police,” and “either, (1) that all police officers in [the

City] always [engage in the same, specific unlawful conduct against] any citizen

with whom they happen to have an encounter, whether for the purpose of arrest,

issuing a citation or for questioning or, (2) that the City ordered or authorized

police officers to act in such manner.” (emphasis omitted)).

The district court properly dismissed Raiser’s equal protection claim because

Raiser failed to allege facts sufficient to show that he was treated differently from

similarly situated individuals, or discriminated against based on his membership in

a protected class without a rational basis. See Village of Willowbrook v. Olech,

528 U.S. 562, 564 (2000) (elements of an equal protection “class of one” claim);

Barren v. Harrington, 152 F.3d 1193, 1194-95 (9th Cir. 1998) (order) (elements of

an equal protection claim based on membership in a protected class).

The district court properly dismissed Raiser’s excessive force claim because

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Raiser failed to allege facts sufficient to show that defendants used excessive force

against him. See Graham v. Connor, 490 U.S. 386, 396 (1989) (setting forth

standard for claim of excessive force); see also Sprewell v. Golden State Warriors,

266 F.3d 979, 988 (9th Cir. 2001) (court need not accept as true allegations that

contradict matters properly subject to judicial notice or by exhibit, or allegations

that are merely conclusory, unwarranted deductions of fact, or unreasonable

inferences).

The district court properly dismissed Raiser’s medical deliberate

indifference claim because, under any applicable standard, Raiser failed to allege

facts sufficient to state a claim. See Toguchi v. Chung, 391 F.3d 1051, 1057 (9th

Cir. 2004) (a prison official acts with deliberate indifference only if the official

knows of and disregards an excessive risk to a prisoner’s health); Lolli v. County of

Orange, 351 F.3d 410, 418-19 (9th Cir. 2003) (explaining that pretrial detainee’s

claim of deliberate indifference to a serious medical need is analyzed under the

Fourteenth Amendment Due Process Clause rather than under the Eighth

Amendment, but same standard applies); cf. Castro v. County of Los Angeles, 833

F.3d 1060, 1067-71 (9th Cir. 2016) (en banc) (elements of Fourteenth Amendment

pretrial detainee failure-to-protect claim). Further, the district court did not abuse

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its discretion in dismissing this claim without leave to amend because amendment

would be futile. See Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034,

1041 (9th Cir. 2011) (setting forth standard of review and explaining that dismissal

without leave to amend is proper when amendment would be futile).

Dismissal of Raiser’s remaining Fourth Amendment claims was proper

because Raiser failed to allege facts sufficient to establish that any constitutional

deprivation resulted from an official policy, practice, or custom. See Ellins v. City

of Sierra Madre, 710 F.3d 1049, 1066 (9th Cir. 2013) (“[M]unicipalities are

subject to damages under § 1983 in three situations: when the plaintiff was injured

pursuant to an expressly adopted official policy, a long-standing practice or

custom, or the decision of a ‘final policymaker.’”).

We do not consider Raiser’s arguments related to Appeal No. 15-55488, or

the district court proceeding underlying Appeal No. 15-55488, because those

issues are outside of the scope of this appeal.

Defendants’ motion to take judicial notice (Docket Entry No. 39) is denied

as unnecessary.

AFFIRMED.

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